2 The Economic, Social and Cultural Rights in International Human Rights Law

Prof. Rehan Abeyratne

Introduction

Economic, social and cultural rights (ESCRs) are rights aimed at fulfilling certain material needs, such as food, water, and shelter, as well as providing access to the cultural life of the community. They are broadly recognized and protected in international human rights treaties, regional human rights treaties, and in the domestic laws of several countries, including India.

This chapter seeks to give students a general introduction to ESCRs. It will discuss the international and regional instruments that protect these rights, theoretical debates about the legal status and enforceability of ESCRs, and how these rights are enforced at the domestic level.

Learning Outcomes:

After completing this chapter, students should know and understand:

The international and regional human rights instruments that protect ESCRs Debates about the status and enforceability of ESCRs

Country-specific approaches to enforcing ESCRs

Economic, Social and Cultural Rights in International Human Rights Law

The Universal Declaration of Human Rights (UDHR) of 1948 (available here) was the first major international human rights instrument. Though it was merely declaratory and did not have legally binding effect, the UDHR is a thefoundational document of all human rights law and remains very influential and heavily cited today. The UDHR gave recognition to a range of economic, social and cultural rights (ESCRs), which was thereafter codified in legally enforceable treaties. These include: the right to social security (Article 22),the right to work (Article 23), the right to an adequate standard of living (including adequate food, clothing, housing, healthcare, and social services) (Article 25), the right to education (Article 26), and the right to participate in the cultural life of the community (Article 27).

In 1966, the Commission on Human Rights disseminated two human rights covenants that would give legal authority to the rights declared in the UDHR. They are the International Covenant on Civil and Political Rights (ICCPR), and the International Covenant on Economic, Social and Cultural (ICESCR)finally came into force in 1976. They both require formal state ratification; states have to consent to their terms before any binding obligations are imposed. As their titles suggest, the second of these covenants pertain to ESCRs.

Article 2 of the ICESCR sets forth the general obligations of each state party to this Covenant, which are broad and make allowances for differences in development and resources among states. Article 2

(1) establishes that every state party “undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means.” Thus, the ICESCR does not require states to fulfill the economic, social and cultural rights of their citizens immediately or even in a specified amount of time. They must simply “undertake to take steps” towards meeting their obligations under the Covenant in the future.

The ICESCR also enumerates specific economic, social and cultural rights, which correspond closely to the rights in the UDHR. These include: the right to work (art. 6), the right to social security (art. 9), the right to an adequate standard of living, which includes adequate food, clothing, and housing (art. 11), the right to health (art. 12), the right to education (art. 13), and the right to engage in, and benefit from, culture life (art. 15).

Regional treaties in the Americas, Africa, and Europe provide additional ESCR protection. In the American region, the two main human rights instruments are the American Declaration on the Rights

and Duties of Man (1948)4 and the American Convention on Human Rights (1969). 5The American Declaration, like the UDHR, was intended only as a declaratory instrument, while the American Convention is legally binding. Both recognizecertain economic, social and cultural rights. For instance, the American Declaration recognizes, inter alia, the right to health (art. 11), the right to education (art. 12), the right to take part in cultural life (art. 13), and the right to social security (art. 16). The American Convention includes only a right to the progressive realization (art. 26), which requires state parties to undertake to adopt measures towards the full realization of “economic, social, educational, scientific, and cultural standards” set forth in the Organization of American States (OAS) Charter. The Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (“Protocol of San Salvador”) gives legal effect to a full range of socioeconomic rights including education, health, food and social security.

In Africa, the main human rights treaty is the African Charter on Human and Peoples’ Rights (1981). It protects a range of ECSRs, including the right to work (art. 15), the right to health (art. 16 and 18), the right to education (art. 17), and the right to a satisfactory environment (art. 24).In Europe, the principal human rights treaty – the European Convention on Human Rights – does not explicitly recognize ESCRs. The European Social Charter (adopted in 1961, revised in 1996), however, offers comprehensive ESCR protection to citizens of member states. Part Iof the Charter lists 31 rights and policy aims to be progressively realized. These include various rights of workers (including rights to equal pay, safe and healthy working conditions, and collective bargaining), the right to protection against poverty and social exclusion, and the right to housing. Part II establishes a range of binding obligations on states including the right to work, the right to health, the right to social security, etc.

Debates on the Status and Enforceability of ESCRs

Economic, social and cultural rights are often expressed in aspirational language towards progressive realization. This is large because ESCRs have been traditionally viewed as “positive” rights, meaning that governments must take positive steps towards fulfilling them. By contrast, civil and political rights are considered “negative” rights in that they are fulfilled simply by government inaction. For instance, the right to freedom of speech can be fully upheld if the government refrains from passing laws restricting expression, but the right to food can only be fulfilled if the government affirmatively provides adequate food, both in terms of quantity and nutritional content, to those in need. This dichotomy between positive and negative rights is problematic, but it is important to recognize that it has contributed a great deal to the skepticism that accompanies the enforcement of ESCRs.

Under the standard view, positive rights lack the legal force of negative rights. They are often cast as policy directives that do not give rise to legally binding duties and obligations. We saw this in Article 2 of the ICESCR, which requires states only to take steps, to the extent their resources permit, towards the full realization of the rights in the Covenant. This can be seen in the Constitution of India as well. Part IV of the Constitution sets forth a range of “Directive Principles of State Policy,” which are socioeconomic aims of the state that cannot be enforced in court.

There are two main concerns regarding the enforceability of ESCRs. First, there is a practical concern that courts are ill equipped to handle cases that involve complex questions of resource allocation. Courts generally do not have the resources to undertake their own fact-finding or research and lack the time to adjudicate upon complicated, policy-oriented cases like those involving ESCRs. Second, judicial enforcement of ESCRs might create a separation of powers concerns. Under the standard separation of powers conception, the legislature enacts laws, while courts simply interpret those laws. The issue is that if courts adjudicate on ESCRs, they will assume a policy-making or legislative role. ESCR cases require courts to determine how the state should allocate resources, which implicates a number of policy areas including tax, trade, and immigration. This is arguably undemocratic because legislatures are elected to make laws, which they do through deliberation and compromise, whereas unelected judges issue legal opinions.

As discussed, however, both these concerns rely on the assumption that positive and negative rights are distinct and that ESCRs are positive rights. In fact, all human rights have both positive and negative dimensions. Take, for instance, the right to free speech. If a state is serious about upholding its obligations under international human rights law, it must protect speakers of unpopular or controversial views. To do this, it must hire and pay police officers, prosecutors, and judges. The police are required to protect unpopular speakers from violent acts and control crowds in public demonstrations. Judges and prosecutors are necessary to uphold the legal foundations of free speech against both government and private incursions. Thus, a core civil and political right – the right to free speech – is not simply upheld by government inaction; a state must invest resources to ensure this right is fulfilled.

Similarly, ESCRs have negative dimensions. Consider the right to food. To uphold this right, states must do more than simply provide adequate food to those in need. They must also protect each individual’s food supplies or access to food from others’ interference. For instance, if a farmer grows his own food and a third-party destroys his crops, his right to food is infringed. Therefore, states must protect farmers’ crops from private acts of destruction. In this context, the right to food is much like a civil and political right. Law enforcement and legal systems are required to protect the food supplies of each citizen, just as they are needed to uphold the right to free speech.

Domestic Enforcement of ESCRs

At the domestic level, states have adopted various approaches to enforcing ESCRs. Some do not recognize these rights in their constitutions, but nonetheless uphold basic commitments to socioeconomic justice. The United States, for instance,fits this description. While the U.S. Constitution does not enumerateESCRs, some aspects of these rights are upheld through ordinary laws and have become part of the nation’s “constitutive commitments”. Thus, Americans believe they have a “right” to social security and to free public education, even though there are no such formal guarantees in the Constitution. The U.S. Supreme Court has upheld these basic commitments to some degree. For instance, it has held that individuals cannot be denied welfare payments without a hearing, as that would violate the right to due process under the Fourteenth Amendment to the U.S. Constitution. The Supreme Court also struck down a Texas law that required undocumented immigrants to pay a tuition fee to attend public school.  However, the Court has also made clear that the government has no positive obligations to assist those in need. It has stated that the Constitution confers no right to affirmative government assistance “even where such aid may be necessary to secure life.”

At the other end of the spectrum, the Indian Constitution has been interpreted to confer a range of enforceable ESCRs. Part IV of the Constitution sets forth a detailed set of Directive Principles of State Policy (DPSPs). These are non-binding guidelines intended to guide elected representatives towards improving socioeconomic conditions. Article 37 of the Constitution makes clear that DSPs “shall not be enforceable by any court.” In a series of judgments beginning in the 1980s, the Indian Supreme Court has held that certain DPSPs are enforceable. One of the most significant cases in this line is Francis Coralie Mullin v. Union Territory of Delhi (1981). The judgment, authored by Justice Bhagwati, extended the right to life and personal liberty under Article 21 (a judicially enforceable fundamental right in Part III of the Constitution) to cover a much broader right to “live with dignity.” In subsequent cases, the Court has held that a number of socioeconomic guarantees, which were originally expressed as policy directives in Part IV of the Constitution, constitute part of a right to live with dignity and are therefore enforceable under Article 21. These include the rights to education, food, healthcare, shelter, and a decent livelihood. The Supreme Court has also devised a number of procedural innovations to ensure that those most in need of ESCR enforcement can have their claims heard. For instance, the Supreme Court has relaxed locus standi or standing requirements to allow any concerned citizen (or NGO) to bring petitions for the redress of fundamental rights violations on behalf of those too disadvantaged to file petitions themselves. It has also adopted a doctrine called “continuing mandamus,” which allows it to postpone final judgment in a case so that it may periodically issue guidelines and interim orders to ensure that the government complies with its rulings. These innovations, collectively known as public interest litigation (PIL), have greatly expanded the judiciary’s ability to adjudicate ESCR cases.

South Africa has adopted an approach to ESCRs that falls between the minimalism of the U.S. and the robust judicial enforcement of India. The 1996 Constitution of South Africa explicitly sets forth a full scheme of ESCRs. Section 26, for instance, provides, “Everyone has the right to have access to adequate housing,” while Section 27 provides, “Everyone has the right to have access to health care services…Sufficient food and water; and social security.” Yet, unlike in India, the South African Constitution specifies minimum requirements the state must satisfy in fulfilling these rights. Section 26 (2) and 27 (2) both provide as follows: “The State must take reasonable legislative and other measures, within its available resources, to achieve the progressive realization of this right.” The South African Constitutional Court, therefore, upholds ESCRs as full constitutional rights – and not merely “constitutive commitments” or directive principles” – but limits itself to judging only the reasonableness of government schemes aimed at fulfilling those rights. As a result, the South African Constitutional Court largely avoids the justiciability concerns with ESCRs. It does not involve itself in complex questions of resource allocation but instead, allows the state to craft its own policies that the courts will uphold if reasonable. The Constitutional Court does not go so far as the Indian Supreme Court to devise its own procedural mechanisms and remedies. It, therefore, does not create a separation of powers issues.

Summary

Economic, social and cultural rights (ESCRs) are rights aimed at fulfilling certain material needs, such as food, water, and shelter, as well as providing access to the cultural life of the community. They are protected at the international, regional, and domestic levels.

At the international level, ESCRs was first recognized in the Universal Declaration of Human Rights (1948). These rights received legally binding effect in 1976 when the International Covenant on Economic, Social and Cultural Rights (ICESCR) came into force. The ICESCR protects a range of ESCRs, including the rights to social security, health, education, and an adequate standard of living. At the regional level, ESCRsreceive additional protection in the Americas, Africa, and Europe.

ESCRs are traditionally considered to be “positive” rights, while civil and political rights have been viewed as “negative” rights. While this distinction is problematic, it has contributed in large measure to concerns about the legal status and enforceability of ESCRs. These rights are often couched in the language of progressive realization, as in Article 2 of the ICESCR, and lack immediate legally binding effect. With respect to justiciability, two concerns emerge: (1) courts do not have the time or resources to handle ESCR cases because of their complexity and broad policy effects; and (2), courts might infringe on the legislative sphere if they engage in policymaking, which ESCR cases require them to do. However, once we recognize that the dichotomy between positive and negative rights is flawed, these concerns become less severe.

At the domestic level, countries have adopted various approaches to enforce ESCRs. The United States recognizes only minimal commitments to socioeconomic justice, which have been upheld by the U.S. Supreme Court to some extent but do not appear in the text of the U.S. Constitution. The Indian Constitution includes non-enforceable Directive Principles of State Policy in Part IV. The Indian Supreme Court, however, has held that some of these principles are enforceable through the right to life and personal liberty in Article 21 of the Constitution. It has also crafted a series of procedural innovations, known as public interest litigation, to expand the scope of its authority in enforcing ESCRs. Meanwhile, South Africa’s Constitution sets forth enforceable ESCRs including the rights to adequate food and shelter. The Constitution also establishes the standard of review that governs these cases – reasonableness. Therefore, while the South African Constitutional Court is empowered to decide ESCR cases, it is limited to judging whether government schemes are reasonable and may not craft its own procedures or remedies.

Reference

• Cass R. Sunstein, The Second Bill of Rights (New York: Basic Book, 2004) at 61. Ibid at 63-66.
• Goldberg v. Kelly, 397 U.S. 254 (1970).
• Plyer v. Doe, 457 U.S. 202 (1982).
• Deshaney v. Winnebago County, 489 U.S. 189 (1989) at 196.
• Unni Krishnan v State of AP, (1993) 1 S.C.R. 594; PUCL v Union of India, Writ Petition (Civil) No. 196 (2001); PaschimBangaKhetMazdoorSamity v State of WB, (1996) 4 S.C.C. 37; Olga Tellis v Bombay Municipal Corporation, (1985) 2 S.C.R. Supp. 51.